Progressive Builders v Long Rise: Adjudication Determination under Security of Payment Act
In Progressive Builders Pte Ltd v Long Rise Pte Ltd, the High Court of Singapore dismissed Progressive Builders' application to set aside an adjudication determination made in favor of Long Rise Pte Ltd under the Building and Construction Industry Security of Payment Act. The court held that the service of the payment claim by email was valid, the payment claim complied with the Act, and the adjudicator did not breach natural justice. The judgment was delivered on 2015-08-25 by Lee Seiu Kin J.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Application Dismissed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The High Court dismissed Progressive Builders' application to set aside an adjudication determination in favor of Long Rise under the Building and Construction Industry Security of Payment Act.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Progressive Builders Pte Ltd | Plaintiff | Corporation | Application Dismissed | Lost | |
| Long Rise Pte Ltd | Defendant | Corporation | Judgment for Defendant | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Lee Seiu Kin | Judge | Yes |
4. Counsels
4. Facts
- Progressive Builders was the main contractor for a housing project.
- Long Rise was engaged as a subcontractor to supply labor and tools.
- The contract was terminated by Progressive Builders due to alleged breaches by Long Rise.
- Long Rise claimed that Progressive Builders under-certified and under-paid progress claims.
- Long Rise served a notice of intention to apply for adjudication in respect of PC13.
- Progressive Builders argued that PC13 was invalidly served via email and did not comply with the Act.
- The adjudicator allowed most of Long Rise’s claims.
5. Formal Citations
- Progressive Builders Pte Ltd v Long Rise Pte Ltd, Originating Summons No 953 of 2014, [2015] SGHC 223
6. Timeline
| Date | Event |
|---|---|
| Contract signed | |
| Progress claim 12 issued | |
| Notice of intention to terminate Contract issued | |
| Contract terminated | |
| Payment certificate 10 served | |
| Progress claim 13 sent | |
| Notice of intention to apply for adjudication in respect of PC12 served | |
| Notice of intention to apply for adjudication in respect of PC13 served | |
| Payment certificate 11 served | |
| Adjudication application lodged with the SMC | |
| Adjudicator appointed | |
| Adjudication response lodged with the SMC | |
| Adjudication conference held | |
| Adjudication Determination made | |
| Originating summons filed | |
| Application dismissed | |
| Judgment issued |
7. Legal Issues
- Validity of Service of Payment Claim by Email
- Outcome: The court held that service of the payment claim by email was valid as long as the document was brought to the attention of the intended recipient.
- Category: Procedural
- Sub-Issues:
- Interpretation of Section 37 of the Building and Construction Industry Security of Payment Act
- Applicability of the Electronic Transactions Act
- Related Cases:
- [2014] SGCA 61
- [2013] 1 SLR 401
- [2010] VSC 199
- Compliance with Section 10(3)(a) of the Building and Construction Industry Security of Payment Act
- Outcome: The court held that the payment claim complied with s 10(3)(a) of the Act, and even if there was non-compliance, it did not invalidate the payment claim.
- Category: Substantive
- Sub-Issues:
- Requirements for stating the claimed amount and reference period in a payment claim
- Whether non-compliance with s 10(3)(a) invalidates a payment claim
- Related Cases:
- [2013] 2 SLR 776
- [2014] SGHC 142
- Compliance with Principles of Natural Justice by Adjudicator
- Outcome: The court held that the adjudicator did not breach the principles of natural justice.
- Category: Procedural
- Sub-Issues:
- Whether the adjudicator treated the issue of service by e-mail inconsistently
- Whether the adjudicator failed to consider previous payment responses
- Related Cases:
- [2013] 3 SLR 380
8. Remedies Sought
- Setting aside of the adjudication determination
- Costs
9. Cause of Actions
- Breach of Contract
- Application to set aside an adjudication determination
10. Practice Areas
- Construction Disputes
- Adjudication
- Commercial Litigation
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd | Singapore Court of Appeal | Yes | [2014] SGCA 61 | Singapore | Cited for the principle that the court may only review matters relating to the jurisdiction of the adjudicator, a failure to comply with a mandatory or essential condition under the Act, and a breach of natural justice. |
| Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal | High Court | Yes | [2013] 1 SLR 401 | Singapore | Cited for the principle that if there is no valid payment claim, the purported appointment of the adjudicator will be invalid and the resulting adjudication determination will be null and void. |
| APP Pte Ltd v APQ Pte Ltd | Singapore Subordinate Courts | Yes | [2013] SGSOP 22 | Singapore | Cited for the principle that the service of a payment claim by e-mail was valid as long as the respondent had been given due notice. |
| Marsden Villas Ltd v Wooding Construction Ltd | New Zealand Court of Appeal | Yes | [2007] 1 NZLR 807 | New Zealand | Cited for the principle that the service provisions are not mandatory or exclusionary; if a document is served on a party in a different way and the evidence satisfies the court that the document has come to the attention of the party, then that is sufficient proof of service. |
| Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd | Victorian Supreme Court | Yes | [2010] VSC 199 | Australia | Cited for the principle that Section 50 of the Act is facultative, it is not mandatory. It will be noted that the opening words used in subsection (1) are “may be given to or served”. Section 50 is not a code. |
| Capper v Thorpe | High Court of Australia | Yes | [1998] HCA 24 | Australia | Cited for the principle that a document will be served if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document. |
| Howship Holdings Pty Ltd v Leslie and another | Supreme Court of New South Wales | Yes | (1996) 41 NSWLR 542 | Australia | Cited for the principle that the ordinary meaning of “service” is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. |
| Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited | New South Wales Court of Appeal | Yes | [2006] NSWCA 259 | Australia | Cited for the principle that if a document has actually been received and come to the attention of a person to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with. |
| Woodgate v Garard Pty Ltd | Supreme Court of New South Wales | Yes | [2010] NSWSC 508 | Australia | Cited for the approach has been termed the “effective informal service rule”. |
| Sharpley v Manby | English Court of Appeal | Yes | [1942] 1 KB 217 | England | Cited for the principle that the service was valid as the notice was delivered to and received by the person to whom the notice was to be given. |
| Stylo Shoes Ltd v Prices Tailors Ltd | Chancery Division | Yes | [1960] Ch 396 | England | Cited for the principle that the purpose of the provision was to ensure that a notice was given and actually received and as this purpose had been achieved, it was immaterial that the letter had reached the tenants by way of their old address. |
| Hastie & Jenkerson v McMahon | English Court of Appeal | Yes | [1990] 1 WLR 1575 | England | Cited for the principle that the purpose of serving a document is to ensure that its contents are available to the recipient and whether the document is served in the conventional way or by fax the result is exactly the same. |
| In re A Debtor | Chancery Division | Yes | [1939] Ch 251 | England | Cited for the principle that the “effective informal service rule” does not apply to originating processes such as writs where the requirements are considered strictissimi juris. |
| Dwyer and another v Canon Australia Pty Ltd and others | Supreme Court of South Australia | Yes | [2007] SASC 100 | Australia | Cited for the principle that the “effective informal service rule” is part of the common law. |
| Australian Timber Products Pte Ltd v A Pacific Construction & Development Pte Ltd | High Court | Yes | [2013] 2 SLR 776 | Singapore | Cited for the principle that the court should examine whether any of the provisions which were not complied with was so important that it was the legislative purpose that an act done in breach of the provision should be invalid, so that non-compliance with such a provision would invalidate the adjudication determination. |
| Shin Khai Construction Pte Ltd v FL Wong Construction Pte Ltd | Singapore High Court | Yes | [2013] SGHCR 4 | Singapore | Cited for the principle that the payment claim was not defective since it was clear from the first page of the payment claim that the sum claimed was an accumulated sum. |
| APH Pte Ltd v API Co Ltd | Singapore Subordinate Courts | Yes | [2013] SGSOP 18 | Singapore | Cited for the principle that s 10(3)(a) of the Act was complied with since the reference period could be inferred from the information found in the documents submitted with the payment claim. |
| Multiplex Constructions Pty Ltd v Luikens and anor | Supreme Court of New South Wales | Yes | [2003] NSWSC 1140 | Australia | Cited for the principle that a payment claim and a payment schedule should not, therefore, be required to be as precise and as particularised as a pleading in the Supreme Court. |
| Protectavale Pty Ltd v K2K Pty Ltd | Federal Court of Australia | Yes | [2008] FCA 1248 | Australia | Cited for the principle that a payment claim must be sufficiently detailed to enable the principal to understand the basis of the claim. |
| YTL Construction (S) Pte Ltd v Balanced Engineering & Construction Pte Ltd | High Court | Yes | [2014] SGHC 142 | Singapore | Cited for the proposition that a payment claim that failed to comply with s 10(3)(a) of the Act is necessarily invalid. |
| W Y Steel Construction Pte Ltd v Osko Pte Ltd | Singapore Court of Appeal | Yes | [2013] 3 SLR 380 | Singapore | Cited for the principle that the purpose behind s 15(3) of the Act is to ensure that reasons for withholding payment are given in a timely fashion. |
| Pacific General Securities Ltd and anor v Soliman and Sons Pty Ltd and ors | Supreme Court of New South Wales | Yes | [2006] NSWSC 13 | Australia | Cited for the principle that without an updated payment response, the claimant cannot know whether all or any and if so which of the grounds previously advanced were now relied upon and thus run the risk of being ambushed by the respondent in the adjudication proceedings. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) | Singapore |
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 37 | Singapore |
| Electronic Transactions Act (Cap 88, 2011 Rev Ed) s 12 | Singapore |
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 13(3) | Singapore |
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 10(3) | Singapore |
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 16(3)(c) | Singapore |
| Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) s 15(3)(a) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Adjudication Determination
- Building and Construction Industry Security of Payment Act
- Payment Claim
- Payment Response
- Service of Documents
- Natural Justice
- Progress Claim
- Electronic Transactions Act
15.2 Keywords
- adjudication
- security of payment
- construction
- payment claim
- service
- Progressive Builders
- Long Rise
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Building and Construction Industry Security of Payment Act | 90 |
| Construction Law | 75 |
| Contract Law | 65 |
| Arbitration | 30 |
16. Subjects
- Construction Dispute
- Adjudication
- Security of Payment
- Service of Documents